This chapter provides for, both during and following development, the control of erosion and sedimentation, and establishes procedures for the administration and enforcement of such controls.
[HISTORY: Adopted by the Town Council of the Town of Middletown as 11-13-1975 (Ch. 4.1 of the 1972 Code). Amendments noted where applicable.]
[Amended 10-8-2007]
Except as provided for in § 97-4 of this chapter, no person may engage in any land disturbing activity until such person has submitted to the Town Zoning Administrator, and has had received and approved by the Frederick County Department of Public Works, an erosion and sediment control plan for such land disturbing activity.
[Amended 9-8-1977; 10-8-2007; at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
Any activity which removes the vegetative ground cover including but not limited to the removal, root mat removal or topsoil removal.
A governmental subdivision of the state organized in accordance with the provisions of the Soil Conservation Districts Law, Title 21, Chapter 1, Code of Virginia, as amended.
A document containing material for the conservation of soil and water resources of a unit or a group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to assure that the entire unit of land will be so treated to achieve the conservation objectives.
Any digging, scooping or other methods of removing earth materials.
Any depositing or stockpiling of earth materials.
The Council of the Town of Middletown.
Any excavating or filling of earth materials or any combination thereof, including the land in its excavated or filled condition.
Any land change which may result in soil erosion from water or wind and the movement of sediments into waters or into lands, including, but not limited to, clearing, grading, excavating, transporting and filling of land, other than federal lands, except that the term shall not include:
Such minor land disturbing activities as home gardens and individual home landscaping, repairs and maintenance work.
Individual service connections:
Construction, installation or maintenance of electric and telephone utility lines.
Installation, maintenance or repair of any underground public utility lines when such activity occurs on an existing hard surfaced road, street or sidewalk, provided that such land disturbing activity is confined to the area of the road, street or sidewalk which is hard surfaced.
Septic tank lines or drainage fields, unless included in an overall plan for land disturbing activity relating to construction of the building to be served by the septic tank system.
Surface or deep mining; neither shall it include tilling, planting or harvesting of agricultural, horticultural or forest crops.
Construction, repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.
Preparation for single-family residences separately built, unless in conjunction with multiple construction in subdivision development.
Disturbed land areas for commercial or noncommercial uses of less than 10,000 square feet in size, provided that the Town Council may reduce this exception to a smaller area of disturbed land and/or qualify the conditions under which this exception shall apply.
Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles.
Emergency work to protect life, limb or property, and emergency repairs, provided that if the land disturbing activity would have required an approved erosion and sediment control plan, if the activity were not an emergency, the land area disturbed shall be shaped and stabilized in accordance with the requirement of the local plan approving authority.
A permit issued by Frederick County Department of Public Works for clearing, filling, excavating, grading or transporting, or any combination thereof.
The Town Planning Commission.
Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative or any other legal entity.
The Town Zoning Administrator and Frederick County Department of Public Works.
The Chair of the Planning Commission or such other official designated by the governing body to serve as its agent to administer this chapter.
Any moving of earth material from one place to another, other than such movement incidental to grading, when such movement results in destroying the vegetative ground cover, either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs.
In no instance shall the provisions of this chapter be construed to apply to the following:
A.
Such minor land disturbing activities as home gardens and individual home landscaping, repairs and maintenance work.
B.
Individual service connections and construction or installation of public utility lines.
C.
Septic tank lines or drainage fields unless included in an overall plan for land disturbing activity relating to construction of the building to be served by the septic tank system.
D.
Surface or deep mining, tilling, planting or harvesting of agricultural, horticultural or forest crops, or clearing and transporting on privately owned, occupied or operated agricultural, horticultural or forest land.
E.
Construction, repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.
F.
Preparation for single-family residences separately built, unless in conjunction with construction in subdivision development on adjoining lots.
G.
Disturbed areas for commercial or noncommercial uses of less than 10,000 square feet in size.
H.
Installation of fence and sign posts, or telephone and electric poles and other kinds of posts or poles.
I.
Emergency work to protect life, limb or property, and emergency repairs, provided that if the land disturbing activity would have required an approved erosion and sediment control plan if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirement of the local plan approving authority.
J.
Engineering operations on privately owned, occupied or operated agricultural, horticultural or forest lands such as the construction of terraces, terrace outlets, check dams, desilting basins, floodwater retarding structures, channel improvements, floodways, dikes, ponds, ditches and the like; the utilization of strip cropping, lister furrowing, land drainage, land irrigation, seeding and planting of waste, sloping, abandoned or eroded lands to water-conserving and erosion-preventing plants, trees and grasses; forestation and reforestation; rotation of crops; soil stabilization with trees, grasses, legumes and other thick growing, soil holding crops; retardation of runoff by increasing absorption of rainfall; and retirement from cultivation of steep, highly erosive areas now badly gullied or otherwise eroded.
[Amended 10-8-2007; at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
Except as provided in Subsections B and C, no person shall engage in any land disturbing activity after the adoption of this chapter until he has submitted to the Frederick County Department of Public Works an erosion and sediment plan for such land disturbing activity and until that plan has been reviewed and approved by the Frederick County Department of Public Works.
B.
Any state agency that undertakes a project involving a land disturbing activity will file specifications for a conservation plan with the State Soil and Water Conservation Board for review.
C.
Any person whose land disturbing activities involve lands which extend into the jurisdiction of another local erosion and sediment control program is not required to submit a local plan, provided such person has a plan approved by the State Soil and Water Conservation Board. Such person shall comply with the requirements of this chapter concerning a performance bond, cash escrow, letter of credit, any combination thereof or such other legal arrangements as are acceptable to the Town Planning Commission.
D.
Whenever a land disturbing activity is proposed to be conducted by a contractor performing construction work pursuant to a construction contract, the preparation, submission and approval of the required erosion and sediment control plan shall be the responsibility of the owner of the land.
E.
Nothing in this section shall affect any project commenced prior to the adoption of this chapter.
Five copies of the erosion and sediment control plan shall be submitted to the Administrator.
A.
Land disturbing activities where permit is issued. With respect to approved plans for erosion and sediment control in connection with land disturbing activities which involve the issuance of a grading, building or other permit, either the permit issuing authority or plan approving authority shall provide for periodic inspections of the land disturbing activity to ensure compliance with the approved plan, and to determine whether the measures required in the plan are effective in controlling erosion and sediment resulting from the land disturbing activities. Notice of such right of inspection shall be included in the permit. The owner, occupier or operator shall be given an opportunity to accompany the inspectors. If the permit issuing authority or plan approving authority determines that the permittee has failed to comply with the plan, the authority shall immediately serve upon the permittee by registered or certified mail to the address specified by the permittee in his permit application a notice to comply. Where the plan approving authority serves notice, a copy of each notice shall also be sent to the issuer of the permit. Such notice shall set forth specifically the measures needed to come into compliance with such plan and shall specify the time within which such measures shall be completed. If the permittee fails to comply within the time specified, he may be subject to revocation of the permit; furthermore, he shall be deemed to be in violation of this chapter and upon conviction shall be subject to the penalties provided by this chapter.
B.
Other regulated land disturbing activities. With respect to approved plans for erosion and sediment control in connection with all other regulated land disturbing activities, the plan approving authority may require of the person responsible for carrying out the plan such monitoring and reports, and may make such on-site inspections after notice to the resident, owner, occupier or operator as are deemed necessary to determine whether the soil erosion and sediment control measures required by the approved plan are being properly performed, and whether such measures are effective in controlling soil erosion and sediment resulting from the land disturbing activity. Such resident, owner, occupier or operator shall be given an opportunity to accompany the inspectors. If it is determined that there is failure to comply with the approved plan, the plan approving authority shall serve notice upon the person who is responsible for carrying out the plan at the address specified by him in his certification at the time of obtaining his approved plan. Such notice shall set forth the measures needed for compliance and the time within which such measures shall be completed. Upon failure of such person to comply within the specified period, he will be deemed to be in violation of this chapter and upon conviction shall be subject to the penalties provided by this chapter.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
The erosion and sedimentation control plan shall follow the format detailed in the Virginia Erosion and Sediment Control Handbook.
B.
Approved standards and specifications for control techniques to be utilized in preparing this plan are set forth in the Virginia Erosion and Sediment Control Handbook. The above requirements are included in the county erosion and sediment control program.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
The plan approving authority will act on all plans submitted within 60 days from receipt thereof by either approving such plan in writing or giving the specific reasons for its disapproval. When a plan submitted for approval under this chapter is found upon review by the respective agency to be inadequate, such agency shall specify such modifications, terms and conditions as will permit approval of the plan and communicate these requirements to the applicant as herein required. If no action is taken by the plan approving authority within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.
Prior to the issuance of any permit, the permit issuing authority may require from any applicant a reasonable performance bond, cash escrow, letter of credit, any combination thereof, or such other legal arrangement as is acceptable to the permit issuing authority, to insure that emergency measures could be taken by the governing body at the applicant's expense should he fail within the time specified to initiate appropriate conservation action which may be required of him as a result of his land disturbing activity. Within 60 days of the completion of the land disturbing activity, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated, as the case may be.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
B.
Issuance of a land disturbing permit is conditioned on an approved erosion and sediment control plan or certification of such which shall be presented at the time of application for such a permit. In addition, the requirements of § 97-10 of this chapter concerning a performance bond, cash escrow, letter of credit, any combination thereof, or such other legal arrangement as is acceptable under the provisions of § 97-10, shall be met and the fees levied for land disturbing activities shall be paid.
A.
Decisions of the Administrator under this chapter shall not be the final decision of the Town but shall be subject to review by the Town Council. The decision of the Town Council shall be the final decision of the Town.
B.
Final decisions of the Council under this chapter shall be subject to review by the circuit court of the county, provided an appeal is filed within 30 days from the date of the final written decision.
[Amended 10-8-2007]
A.
Frederick County Department of Public Works may apply to the court of record in the jurisdiction wherein the land lies for injunctive relief to enjoin a violation or a threatened violation under this chapter without the necessity of showing that there does not exist an adequate remedy at law.
B.
The Town Attorney shall, upon request of the Town, take legal action to enforce the provisions of this chapter.
Compliance with the provisions of this chapter shall be prima facie evidence in any legal or equitable proceeding for damages caused by erosion, siltation or sedimentation that all requirements of law have been met and the complaining party must show negligence in order to recover any damages.